Louisville & Nashviile Railroad v. Buffington , 131 Ala. 620 ( 1901 )

TYSON, J.

The complaint was upon the common counts. The defendant’s plea No. 2 is a plea of set-off, and sought to recover of plaintiff one hundred and twenty-five dollars, which ivas collected by him while acting as agent of defendant and which, it ivas alleged, it was his duty to pay over to defendant.

Confessedly the duty alleged, under the averments of the plea, to pay over this money to defendant by plaintiff, grows out of the relation of agent and principal, shown to have existed between them, rather than out. of a special agreement on the part o'f the plaintiff to pay at all events. In the absence of allegation of a special agreement by plaintiff to become an insurer, the plea must be construed as seeking a recovery against him as a bailee for hire. As bailee, the plaintiff was required to exercise ordinary diligence and was answerable for only ordinary neglect. He was not an insurer of the money intrusted to his cafe, and was not responsible for the loss of it resulting from dangers necessarily incident to its keeping, nor from inevitable accident or irresistible force. Comprehended in the term of irresistible force is a loss by robbery or burglary. — 3 Am. & Eng. Ency. Law (2d ed.), pp. 746, 747, 749, and notes.

The replication, to which defendant demurred, tested by these principles, was a full answer to the plea. There was, therefore, no error in overruling the demurrer to it.

Affirmed.